MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	164

Docket: Fra-19-140;	SRP-19-143

Argued: November	6,	2019

Decided: December	10,	2019

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

STATE	OF	MAINE

v.

JAMES	E.	SWEENEY

GORMAN,	J.

[¶1]		James	E.	Sweeney	appeals	from	a	judgment	of	conviction of	murder,	

17-A	M.R.S.	§	201 (2018), entered	by	the	court	(Franklin	County,	Stokes,	J.)	after	

a	jury-waived	trial.		Sweeney	argues	that	the	court	erred	in	admitting	certain	

testimony given	by	the	mother of	the	woman1 he	killed;	he also	challenges	his	

sentence.		After	careful	review,	we	affirm.

I.		BACKGROUND

A. Factual	and	Procedural	History

[¶2]		The	court	made	the	following	findings	of	fact,	which	are	supported	

by	competent	record	evidence	from	the	trial.		See	State	v.	Fournier,	2019	ME	28,	

 1		Throughout	this	opinion,	we	identify	her	as	“W.D.”
2

¶ 2,	 203	 A.3d	 801.	 	 In the	 summer	 of	 2017,	 Sweeney and	 W.D. had	 been	

romantically	involved	with	one	another	for	over	a	decade.		Witnesses	who	knew	

the	couple	described	the	relationship as generally “good,”	but	in	the	spring	of	

2017,	 Sweeney	 became	 increasingly	 jealous	 and	 suspicious	 that	 W.D.	 was	

involved	with	other	men.		Even	though	W.D.	and	everyone	who	knew	the	couple	

assured	 Sweeney	 that	 his	 suspicions	 were	 unfounded,	 Sweeney	 was	

“unmoved.”

[¶3]	 	In	 March	 of	 2017,	 W.D.	 woke	 in	 the	 middle	 of	 the	 night	 to	 find	

Sweeney	standing	in	her	bedroom	with	a	gun	in	his hands.	 According	 to	 the

trial court, the	significance of	that	event	was	its	demonstration	that	“[Sweeney]	

had	 reached	[such]	 a	level	 of	 desperation	 and	 panic	in	 his	 relationship	with	

[W.D.]	that	he	was	experiencing	suicidal	and	possibly	homicidal	ideation.”

[¶4]		Three	months	later,	in	June	of	2017,	W.D.	told	Sweeney	that	their	

relationship	was	over	but	that	he	could	remain	living	in	her	house,	at	least	for	

a	while.	 Early	in	the	morning	of July	11,	2017,	while	W.D.	was	asleep,	Sweeney	

entered	her bedroom	and	violently	struck her face	and	head	with	a	wooden	bat.		

W.D.	died	as	a	result	of	that	blunt	force	trauma.		

[¶5]	 	 On	 August	 23,	 2017,	 Sweeney was	 indicted	 on	 one	 count	 of	

intentional	or	knowing	murder, 17-A	M.R.S.	§	201(1)(A).		He	entered	pleas	of	
3

not	 guilty	 and	 not	 criminally	 responsible	 by	 reason	 of	 insanity,	 see M.R.U.	

Crim. P.	11(a)(1),	and	waived	his	right	to	a	jury	trial,	see M.R.U.	Crim. P. 23(a).		

[¶6]		At	trial,	which	was	held	over	the	course	of	six days	in	January	and	

February	 of	 2019,	the	 State	 called	W.D.’s	 mother	to	 testify about	 the	 March	

2017	incident.		The	mother	stated	that	early	in	the morning	on	that	day,	W.D.

had	 arrived	 at	 her house	 “nervous	 and	 scared	 and	 crying,”	 telling her that	

Sweeney	had	“woken	[W.D.] up	with	a	gun	pointing in	her	face.”		The	mother	

also	testified	that,	although	she	did	not	know	exactly	what time	the	incident	had	

occurred,	“whenever	it	happened,	[W.D.]	came	immediately	when	she	got	the	

gun [away	 from	 Sweeney] and	 brought	 it	 to	 my	 house.”	 	 Over	 Sweeney’s	

objection,	the	court	admitted	the	mother’s	testimony	pursuant	to	the	present	

sense	impression	exception	to	the	rule	against	hearsay.	 See M.R.	Evid.	803(1).		

The	court also	ruled that,	contrary	to	the	State’s	position, the	statement	was	not	

admissible pursuant	to	the	excited	utterance	exception,	M.R.	Evid.	803(2).		

[¶7]		On	February	1,	2019,	the	court	found	Sweeney	guilty	of	the	murder	

and	continued	the	matter	for	sentencing.		

B. Sentencing

[¶8]		At	the	sentencing	hearing	two	months	later,	the	court	set	the	basic	

sentence	at	thirty-five	years, citing the	murder’s	“brutal,	violent,	unprovoked”	
4

nature	 and	 the	 “classic	 signs	 of	 [domestic	 violence]”	 surrounding	 the	 crime,	

including	 Sweeney’s	 “irrational”	 and	 “obsessive” jealousy.	 	 See 17-A	

M.R.S. § 1252-C(1) (2016).2		

[¶9]		The court then	assessed “all	other	relevant	sentencing	factors,	both

aggravating	 and mitigating,” in	 order to	 determine	 the	final sentence.	 	 17-A	

M.R.S.	§	1252-C(2)	(2016).		As	mitigating	factors,	the	court	identified	Sweeney’s	

age,

3 his	 relatively	limited	criminal	 record,	 reliable	employment	history,	and	

difficult	childhood, and	Sweeney’s acknowledgment	that	he	had	killed W.D.		In	

addition, the	 court	 considered	 as	 a	mitigating	factor	 that	 Sweeney had	 been

“experiencing	some	 type	of	mental	health	crisis”	in	 the	months	leading	up	 to	

the	murder.		

[¶10]		As	aggravating	factors,	the	court	found	that	the	crime’s	effect on	

W.D.’s	 mother	 and	 daughter	would	 be	 “excruciating”;	that	 Sweeney’s	 acts	 of

domestic violence in	 the	 months	 before the	 murder had	 been	 attempts to	

intimidate,	control,	and	threaten	W.D.;	and	that	Sweeney	did	not	call	9-1-1	after	

 2		Title	17-A	M.R.S.	§	1252-C	(2016)	has	recently	been	amended	and	reallocated,	though	not	in	any	

way	 relevant	 to	 this	 appeal,	 as	 part	 of	 the	 recodification	 and	 revision	 to	 Title	 17-A’s	 sentencing	

provisions.	 	 See P.L.	 2019,	 ch.	 113,	 §§ A-1	 to	-2,	 B-9	 (emergency,	 effective	 May	 16,	 2019) (to	 be	

codified	at	17-A	M.R.S.	§ 1602).		All	citations	to	the	sentencing	provisions	in	this	opinion	are	to	the	

statutes	in	effect	at	the	time	of	the	offense.		See	State	v.	Parsons,	626 A.2d	348,	351 (Me.	1993).

3		Sweeney	was fifty-six	when	he	killed	W.D.	and	fifty-nine	at	the	time	of	the	sentencing.		
5

attacking W.D.		After	balancing	the	mitigating	and	aggravating factors,	the	court	

set	the	final	sentence at thirty-eight	years	in	prison.		

[¶11]	 	 Sweeney	 timely	 appealed	 the	 judgment.	 	 See 15	 M.R.S.	 §	 2115

(2018);	M.R.	App.	P.	2B(b)(1).		Upon	his	application,	the	Sentence	Review	Panel	

granted Sweeney	leave	 to	 appeal	 his	 sentence pursuant	 to	15	M.R.S.	 §	 2151

(2018)	and	M.R.	App.	P.	20.		State	v.	Sweeney,	No.	SRP-19-143	(Me.	Sent.	Rev.	

Panel	June	27,	2019).		Sweeney’s	direct	appeal	from	the	judgment	of	conviction	

and	his	sentence	appeal	are	both	before us now.		See M.R.	App.	P.	20(h).

II.		DISCUSSION

A. The	Mother’s	Testimony

[¶12]	 	 Sweeney	 contends	 that	 the	 court	 erred	 in	 admitting	 W.D.’s	

mother’s	testimony	about	statements	W.D.	made	to	her soon	after the	incident	

in	which	Sweeney	went	into	W.D.’s	bedroom	with	a	gun.		

[¶13]		We	review	a	“court’s	decision	to	admit	or	exclude	alleged	hearsay	

evidence	.	.	.	for	an	abuse	of	discretion,”	State	v.	Guyette,	2012	ME	9,	¶	11,	36	

A.3d	916,	and	if	a	court’s	ruling	is	proper,	we	may	affirm	it	“on	grounds	other	

than	 those	 stated	 by	 the	 trial	 court,”	 State	 v.	 Watson,	 2016	 ME	 176,	 ¶	 10,	

152 A.3d	 152.	 	We	 review	 factual	 findings	 underlying	a decision to	 admit	 or	

exclude	evidence	for	clear	error.		State	v.	Robinson,	2001	ME	83,	¶ 10,	773	A.2d	
6

445;	 see M.R.	 Evid.	 104(a).	 	 Furthermore,	 when	 a	 party	 does	 not move	 for	

additional	findings	of	fact	pursuant	to	M.R.U.	Crim.	P.	23(c),	we	“infer	that	the	

trial	court	found all	of	the	facts necessary	to	support	its	judgment,	to	the	extent	

that	 those	 assumed	 facts	 are	 supported	 by	 competent	 record	 evidence.”		

Fournier, 2019	ME	28,	¶	2,	203	A.3d	801.

[¶14]	 	 “[S]ubstantial	 contemporaneity	 is	 the	 essence”	 of	 M.R.	 Evid.	

803(1),	State	v.	Ryne	G.,	509	A.2d	1164,	1168	(Me.	1986),	and	we	agree	with	the	

parties	that	the court	erred in admitting	the	mother’s	testimony	pursuant	to the

present	sense impression	exception to	the	rule	against	hearsay.		As	we	noted,	

however,	the	court	specifically	ruled	that	the	statement	was	not	admissible	as	

an	excited	utterance.		Although	the	court’s	ruling	contained	no	express	factual	

findings	 relevant	 to	 the	 excited	 utterance	 exception, see M.R.	 Evid. 104(a),	

803(2);	State	v.	Watts,	2007	ME	153,	¶	5,	938	A.2d	21,	the	State	did	not	move	

for	additional	findings	of	fact, see M.R.U.	Crim.	P.	23(c);	State	v.	Legassie,	2017	

ME	202,	¶	46,	171	A.3d	589.		Given this	record,	the	court’s	conclusion	that	the	

mother’s	testimony	was	not	admissible	as	an	excited	utterance	was	not	clearly	

erroneous.		See	Fournier,	2019	ME	28,	¶	2,	203	A.3d	801;	Watts,	2007	ME	153,	

¶	5,	938	A.2d	21.		Because	the	mother’s	testimony	was	neither	a present	sense	

impression	 nor	 an	 excited	 utterance,	 and	 was	 therefore	 not	 admissible	
7

pursuant	 to	 those	 exceptions to	 the	 rule	 against	 hearsay,	 the	 court	 erred	 in	

admitting	it.

[¶15]	 	 Although	 the	 court	 erred	 in	 admitting	 the	 mother’s	 hearsay	

testimony,	the error here was	harmless.		See M.R.U.	Crim.	P.	52(a).		An	error	is	

harmless	when	“it	is	highly	probable	that	the	error	did	not	affect	the	factfinder’s	

judgment.”		State	v.	White,	2002	ME	122,	¶	16,	804	A.2d	1146 (quotation	marks	

omitted).	 In	addressing	Sweeney’s	objections	 to	 the	mother’s	 testimony,	 the	

court stated	that	the	testimony	was	“instructive	on	the	relationship”	between	

Sweeney	 and	 W.D.,	 and	 the	 court	 also	 made	 clear	 that	 it	 was	 not	 using	 the	

testimony	as	propensity	evidence. On	the issue of	the	relationship,	however,	

the	 court	 had	 a	 great	 deal	 of	 additional	 and	 pertinent	 evidence,	 including	 a	

letter	Sweeney	wrote	to	W.D. after	the	gun	incident,	Sweeney’s	own	description	

of	that	incident	to	two	forensic	examiners,	and	the	testimony	of	other	witnesses	

who	 discussed	interactions	 they	 saw	 between	 Sweeney	 and	W.D.	 and	things

they	heard	Sweeney	say about	W.D.		Given this	abundant	evidence,	it	is	“highly	

probable,”	 id.,	 that	 any	 error	 in	 the	 court’s	 consideration	 of	 the	 mother’s	

testimony	did	not	affect	the	court’s	finding that	Sweeney “had	reached a	level	
8

of	desperation	and	panic	in	his	relationship	with	[W.D.]” in	the	months	before	

the	murder.4		

B. Sentencing

[¶16]		Sweeney’s challenge to his	sentence	is	based	on	the	assertion that	

the	 court “double-counted”	 the	 factor	 of	 domestic	 violence	 in	 reaching	 its	

sentence.		There	is	simply	no	support	in	the	record	for	that	assertion.

[¶17]	 	 Pursuant	 to	 17-A	 M.R.S.	 §	 1252-C (2016),	 which	 codified	 our	

decision	in	State	v.	Hewey,	622	A.2d	1151,	1154-55 (Me.	1993),	a	court imposing	

a	sentence	for	murder follows a	two-step	process.

5		First,	the	court	“determines	

the	 basic	 term	 of	 imprisonment	 based	 on	 an	 objective	 consideration	 of	 the	

particular	nature	and	seriousness	of	the	crime.”		State	v.	Koehler,	2012	ME	93,	

¶	 33,	 46	 A.3d	 1134. Second,	 the	 court	 “determines	 the	 final	 period	 of	

incarceration	based	on	the	relevant	aggravating	and	mitigating	factors.”		Id.		We	

review	 “a	 court’s	 determination	 of	 the	 basic	 sentence	 de	 novo	 for	

 4		We	are	also	unpersuaded	by	Sweeney’s	unpreserved	argument	that	the	court’s	decision	to	admit,	

as	 substantive	 evidence,	 statements	Sweeney	made	 to	 the	 State’s	 expert	witness	while	admitting	

essentially	 identical	 statements	 Sweeney	 made	 to	 his	 own	 expert	 witness	 only	 as	 the	 basis	 for	

Sweeney’s	expert’s	opinion	violated	Sweeney’s	constitutional	right	to	“a	meaningful	opportunity	to	

present	a	complete	defense.”		Holmes	v.	South	Carolina,	547	U.S.	319,	324	(2006) (quotation	marks	

omitted);	see	also	State	v.	Mitchell,	2010	ME	73,	¶¶	31-33,	4	A.3d	478.		

5		Title	17-A	M.R.S.	§	1252-C	includes	a	third	step—the	determination	of	any	period	of	suspension	

and	 probation—that	 is	 inapplicable to	 a	 sentence	 imposed	 for	 the	 crime	 of	 murder.	 	 See 17-A	

M.R.S. § 1201(1)(A) (2016).
9

misapplication	 of	 legal	 principles	 and	 its	 determination	 of	 the	 maximum	

sentence	 for	 abuse	 of	 discretion.”	 	 State	 v.	 Waterman,	 2010	 ME	 45,	 ¶	 42,	

995 A.2d	243.

[¶18]	 	 Contrary	 to	 Sweeney’s	 suggestions,	 the	 court did	 not	

inappropriately	consider the	element of	domestic violence	at	both	step	one	and	

step	two.		In	fact,	the	sentencing analysis was	a	model	of	fidelity	to	the	law. In	

explaining	 the	 first	 step	 required	in	contemplating	 a	 sentence	 for	Sweeney’s	

crime,	the	court	properly and	correctly	 considered	 the	objective	 elements of	

domestic	 violence	 in	 the	 crime itself.	 	 Sweeney	 killed	 the	 woman	 who	 had	

shared	his	life	for	over	ten	years.		He	killed	her	by	striking	her	face	and	head	

with	a	wooden	bat while	she	slept	in	a	place	where	she	should	have	been	safe—

her	own	home.	 The	court	committed	no	error	in	noting	these	objective	factors	

in	setting	 the	basic	sentence.		See	State	v.	Nichols,	2013	ME	71,	¶	29,	72	A.3d	

503.		

[¶19]	 	At	 step	 two,	 the	 court examined the	 history	 of	the relationship

between	Sweeney	and	W.D.,	including	Sweeney’s	attempts	“to	intimidate,	to	try	

to	 control,	 to	 try	 to	 threaten	 [W.D.],	 implicitly	 or	 explicitly.”	 The	 court	

addressed	 this	 history	 as	 an	 aggravating	 factor, noting	 that	 “the	 most	

dangerous	time	in	a	relationship	is	when	it	is	ending,	it	was	clearly	ending	and	
10

[Sweeney]	could	not	deal	with	it.”	 Considering	Sweeney’s	history	of	domestic	

violence	against	W.D.	as	an	aggravating	factor	was	not error.		See	State	v. Lord,	

2019	ME	82,	¶ 35,	208	A.3d	781;	State	v.	Reese,	2010	ME	30,	¶ 31,	991	A.2d	806.

[¶20]		Finally,	the	court	did	not	err in	its	weighing	of	the	aggravating	and	

mitigating	 factors at	 step	 two.	 	 The	 court’s	 accounting	 of the crime’s

“excruciating”	 impact	 on	 W.D.’s	 family	 was	 firmly within	 the	 bounds	 of	 its	

discretion.		See Lord,	2019	ME	82,	¶	36,	208	A.3d	781;	State	v.	Freeman,	2014	

ME	35,	¶	20,	87	A.3d	719.		

The	entry	is:

Judgment	affirmed.	

Jeremy	 Pratt,	 Esq. (orally), and	 Ellen	 Simmons,	 Esq.,	 Camden,	 for	 appellant	

James	E.	Sweeney

Aaron	M.	Frey,	Attorney	General,	and	Leanne	Robbin,	Asst.	Atty.	Gen. (orally),	

Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Franklin	County	Unified	Criminal	Docket	docket	number	CR-2017-642

FOR	CLERK	REFERENCE	ONLY